I can’t link to the judgment yet; it’s not available. But the news is that Collins J has ruled that British troops in battle may enjoy the article 2 right to life, and that sending them into combat with defective equipment may be a breach of that right.
I won’t comment at any length till I’ve been able to read the judgment. But, first, it’s interesting that this ruling should come so soon after three Law Lords expressed obiter comments on the question whether troops in battle can rely on the Human Rights Act, in the Gentle case the other day. Lord Bingham didn’t think so (see para. 8); Lady Hale did (para. 60); and Lord Carswell though it was questionable (para. 66). So the question certainly should go to appeal, and it’ll be interesting to see what the appellate courts think of it.
Second, I’m not sure how much sense it makes, as Collins J appears to have ruled, that there can be common law duty of care but there can be human rights liability. I’ll wait for the judgment, but that seems odd to me at first blush. And finally, I’m not going to hold my hand up in knee-jerk horror at the ruling, but if this principle stands, it will need great care. The danger is that every death in combat will be the subject of litigation, and that the MoD will have to prove each time that every soldier had the best equipment available anywhere, and the Army will have to prove that it chose the least risky operational course available. While in the past the Army has cried wolf, sometimes laughably, about dangers to operational effectiveness (e.g. in Smith), I worry that there may be a real issue here that this could inhibit Army chiefs and field commanders.
It depends how judges apply the principle. If it’s restricted to relatively rare, serious failure cases, that’s one thing. But will it be?
IF we had a true Parliament instead of a House of Muppets controlled by the executive then the abject failure to properly equip troops sent to do the government’s bidding would have been addressed – e.g. by motions of no confidence in Ministers etc. Yet again, we see a Parliament impotent in the face of a mighty executive.
It should NOT be necessary for these questions to be aired before the courts of law and perhaps the judges should say so and leave these matters to Parliament. However, desperate people out here in the real world see a huge wrong being perpeptuated by government and they are trying to get something done about it. The European Convention is now being seen as a tool to challenge every decision of government. The proper solution to these failures to equip our forces lies with the politicians. What a spineless bunch they truly are.